A class-action lawsuit against a disgraced pathologist and the Miramichi Regional Health Authority has been allowed to go ahead by the New Brunswick Court of Appeal.

In a split decision Thursday, the province's highest court overruled a lower court decision that struck down the class-action lawsuit brought by former patients.

The lawsuit against Dr. Rajgopal Menon and the health authority was filed by three former patients, and about 100 people had signed up for the class action.

Dr. Raj Menon

Dr. Raj Menon was found to have partially or fully misdiagnosed thousands of pathology samples in New Brunswick between 1995 and 2007. (CBC)

​Menon was previously found to have made thousands of partial or full misdiagnoses between 1995 and 2007.

In the lower court decision, Justice Jean-Paul Ouellette of the Court of Queen's Bench had ruled the plaintiffs "failed to establish an identifiable class, define workable and manageable common issues, or establish that a class action would be the preferable procedure for proceeding within the requirements of the Class Proceedings Act."

The judge noted that plaintiffs Albert John Gay and Kimberley Ann Doyle had no change in their diagnoses following a review of their pathology slides.

"They have suffered no physical harm and they have suffered no recognizable psychiatric harm as a result of the action of Dr. Menon or the hospital," Ouellette said. "It is questionable as to whether they are appropriate representatives."

Lead plaintiff Jim Wilson, however, does appear to have cause for action against Menon for the alleged misdiagnosis of prostate cancer, Ouellette concluded in his 41-page decision.

However, in a 2-1 decision, the Court of Appeal ruled that decision amounted to reversible error and said the class-action lawsuit can proceed, making it the first class-action lawsuit to be certified in New Brunswick since legislation in 1982 was enacted to allow class action lawsuits.

In Fredericton for Thursday's ruling, Wilson was happy to hear the case will proceed.

"At least we can get on with it now and see what will come of it," he said.

Jim Wilson

Jim Wilson's biopsies came back negative three times in three years before he was told he did have prostate cancer. (CBC)

​Wilson had biopsies performed three times in three years, and the results showed there was no cancer. The next biopsy showed cancer was present on both sides of his prostate gland.

"The first thing, when I heard there was a problem, I said to my wife … 'I bet you I am one of them.'

"My doctor insisted on me having biopsies because he thought there was something wrong, but the biopsies were coming out [that] there was no cancer."

Wilson said he got involved in the class action because "I feel somebody should be held accountable, not only for me, but for the rest of the people that were misdiagnosed."

Wilson underwent treatment for prostate cancer and will be on medication for the rest of his life.

"I feel fine now, but you don't know how long that's going to last," he said. "Maybe I will see the end of it. Maybe I won't.

The certification order issued by the court defines the "class" in the lawsuit as including:

  • More than 15,000 patients whose tissue samples underwent pathology testing by Menon between Jan. 1, 1995 and Feb. 7, 2007;
  • The estates, children, parents and spouses of deceased patients.

"The Court's order does not determine the merits of the action, but it simply allows it to go forward as a class proceeding," stated the decision by Chief Justice Ernest Drapeau and Justice Alexandre Deschênes.

No automatic Supreme Court hearing

A dissenting opinion was given by Justice Joseph Robertson.

While split decisions of an appeal court are automatically heard by the Supreme Court of Canada in appeals of criminal cases, there is no such provision for split decisions in civil litigation to be automatically heard by the province's highest court. Either Menon or the health authority can seek leave to appeal the decision.

Menon was suspended from his position at the Miramichi Regional Hospital in February 2007, following complaints about incomplete diagnoses and delayed lab results.

Former health minister Michael Murphy called a formal public inquiry into the pathology work at the Miramichi hospital after an independent audit of 227 cases of breast and prostate cancer biopsies from 2004-05 found 18 per cent had incomplete results and three per cent had been misdiagnosed.

The head of the inquiry, Justice Paul Creaghan, found that Menon should have been fired two years before he was suspended.

Creaghan's final report offered 52 recommendations to improve pathology services in the province.